THOMAS LYNN PARKS, PETITIONER V. UNITED STATES OF AMERICA
No. 90-7735
In The Supreme Court Of The United States
October Term, 1990
On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Sixth Circuit
Brief For The United States
OPINION BELOW
The order of the court of appeals affirming petitioner's sentence
(Pet. App. A1-A2) is not reported
JURISDICTION
The judgment of the court of appeals was entered on February 21,
1991. The petition for a writ of certiorari was filed on April 16,
1991. The jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).
QUESTIONS PRESENTED
1. Whether, in determining the weight of lysergic acid diethylamide
(LSD) for sentencing purposes, the district court correctly considered
the combined weight of the LSD and the blotter paper used as a carrier
medium for the drug.
2. Whether considering the combined weight of LSD and the blotter
used as a carrier medium for the drug for sentencing purposes violates
the Due Process Clause of the Fifth Amendment.
STATEMENT
On December 12, 1989, a four-count indictment was returned in the
United States District Court for the Eastern District of Tennessee
charging petitioner with conspiring to distribute and to possess with
the intent to distribute marijuana and lysergic acid diethylamide
(LSD), in violation of 21 U.S.C. 846 (Count I); distribution of 500
dosage units of LSD, in violation of 21 U.S.C. 841(a)(1) (Count II);
distribution of one-half pound of marijuana, in violation of 21 U.S.C.
841(a)(1) (Count III); and distribution of 300 dosage units of LSD,
in violation of 21 U.S.C. 841(a)(1) (Count IV). Pursuant to a plea
agreement, petitioner pleaded guilty to Count 1 of the indictment; in
return, the government dismissed the remaining counts. J.A. 7-11.
/*/ Petitioner was sentenced to a term of 92 months' imprisonment, to
be followed by a four-year term of supervised release. The court of
appeals affirmed. Pet. App. A1-A2.
1. At sentencing, the parties stipulated that petitioner was
responsible for distributing eight squares of blotter paper, each of
which was perforated into 100 dosage units and was impregnated with
LSD. J.A. 18. The parties further stipulated that the eight squares
of the LSD-impregnated blotter paper weighed a total of five grams;
however, "(n)o attempt was made to ascertain the net weight of the LSD
impregnated in the paper squares." Ibid.
In accordance with the directive in Sentencing Guideline Section
2D1.1 Drug Quantity Table n.* that "the entire amount of the mixture
or compound" that "contains any detectable amount of a controlled
substance * * * shall be considered in measuring the quantity" of the
drug involved, the district court calculated the sentencing range for
petitioner's offense in light of the five-gram combined weight of the
LSD and the medium blotter paper. Because more than four grams, but
less than seven grams, of LSD was involved, petitioner's Sentencing
Guidelines base offense level was 28. The district court adjusted the
offense level downward by two points because of petitioner's
acceptance of responsibility. See Sentencing Guidelines Section
3E1.1. The court also determined that petitioner's criminal history
placed him in category IV. As thus calculated, the Sentencing
Guidelines indicated a range of 92-115 months' imprisonment. The
court imposed a sentence of 92 months' imprisonment.
2. The court of appeals affirmed petitioner's sentence. Pet. App.
A1-A2. Relying on its decision in United States v. Elrod, 898 F.2d
60, 61 (6th Cir.), cert. denied, 111 S. Ct. 104 (1990), the court
stated that "the total weight of the LSD impregnated blotter paper,
five grams, was the proper measure of the drug" for sentencing
purposes. Pet. App. A2. The court rejected as "meritless"
petitioner's claim that only the net amount of pure LSD should have
been considered in determining his sentence. Ibid.
ARGUMENT
Petitioner contends that the sentencing judge erred in calculating
the sentencing range for his conduct based upon the combined weight of
the LSD and the blotter paper used as a carrier medium. In
petitioner's view, Pet. 6-8, the ruling below is contrary to the
intended meaning of the statute and, in any event, would be
unconstitutionally arbitrary if the statute were read to include the
weight of the blotter paper.
The question whether the combined weight of LSD and blotter paper
used as a carrier medium may be considered in determining the weight
of LSD for sentencing purposes under the federal drug laws, the
Sentencing Guidelines, and the Constitution is pending before this
Court in Chapman v. United States, cert. granted, No. 90-5744 (argued
Mar. 26, 1991). Accordingly, the petition in this case should be held
pending the Court's decision in Chapman and should then be disposed of
as appropriate.
CONCLUSION
The petition for a writ of certiorari should be held pending the
Court's decision in Chapman v. United States, cert. granted, No.
90-5744 (argued Mar. 26, 1991), and should then be disposed of as
appropriate in light of that decision.
Respectfully submitted.
KENNETH W. STARR
Solicitor General
ROBERT S. MUELLER, III
Assistant Attorney General
ROBERT J. ERICKSON
Attorney
MAY 1991
/*/ "J.A." refers to the joint appendix filed in the court of
appeals.